DOLY LOYI Vs. UNION OF INDIA

JUDGEMENT

(1.) The controversy in this case is in a very narrow compass, and that being so, we may only give such facts as may be relatable to the same, as may emanate from the respective pleadings of parties and the accompanying documents.

(2.) The applicant joined the office of the respondents as Assistant Commissioner of Income Tax on 16.12.1987, and was promoted as Deputy Commissioner of Income Tax in December, 1991, and thereafter as Joint Commissioner of Income Tax on 19.07.2001. CBI lodged one RC/FIR against the applicant on 31.05.2001, but despite that the applicant was promoted as Additional Commissioner of Income Tax with effect from 01.09.2001. Sanction order to prosecute the applicant as regards RC referred to above came to be issued on 02.06.2006. On 25.07.2008, the respondents convened a DPC and issued promotion orders in respect of juniors of the applicant. As regards the same RC, sanction once again came to be given on 25.09.2008. It is not known as to why the sanction to prosecute the applicant was given twice over. The applicant as regards his supersession made a representation on 28.07.2008, and when the same and the reminders given by him brought no tangible results, he filed an Original Application bearing OA No.8/2011 in the Guwahati Bench of this Tribunal seeking opening of the sealed cover that was adopted in his case while his juniors were promoted, and to give effect to the same. The said OA came to be disposed of vide order dated 28.06.2011. It was urged on behalf of the applicant through his counsel that the matter was covered in favour of the applicant by the decision of the Honble Supreme Court in Union of India & others v Sangram Keshari Nayak [(2007) 6 SCC 704], and as per the judgment aforesaid, sealed cover procedure could not be adopted in the case of the applicant. The position as mentioned above came to be conceded by the counsel representing the respondents. We may reproduce para 8 of the judgment wherein such a concession is recorded, thus: 8. Today Mrs. S. Bora, learned Addl. C.G.S.C. appeared and submitted that she has examined the facts of the present case and also tested it on the touchstone of the ratio laid down in the case of Sangram keshari Nayak (supra). According to Mrs. Bora, facts of the present case are covered by the ratio laid down by the Apex Court in the aforesaid case. As such, necessary direction may be issued to the respondents to do the needful in the matter. In view of the position as mentioned above, the Tribunal at Guwahati directed as follows: 9. Having heard the learned counsel for both the parties, and after perusing the factual details of the case, I, hereby, direct the respondents to consider the case of the applicant in the light of the decision of the applicant in the light of the decision of the Honble Supreme Court rendered in the case of Sangram Keshari Nayak (supra) and to pass a reasoned order within a period of two months from the date of receipt of this order. Pursuant to order aforesaid, the respondents have now passed the order dated 15.11.2011 rejecting the request of the applicant to open the sealed cover, and have even gone to the extent of saying in the order that the counsel made a wrong concession before the Tribunal, and that the ratio of the judgment referred to above would not be applicable. It is this order which has been challenged now in this Original Application filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, with the obvious prayer to direct the respondents to open the sealed cover and give effect to the same, and if the applicant may be found suitable for promotion, he be promoted from the date persons junior to him were promoted.

(3.) Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. On facts, there is no dispute at all. What thus would transpire is that, but for sanctioning the prosecution of the applicant twice over once in 2006 and then in 2008, there was nothing at all against him which could justify putting his case into sealed cover. The only question that thus needs to be determined is as to whether sanction for prosecution against the applicant could be a good ground for putting his case in sealed cover. Inasmuch as, the matter is no more res integra and stands clinched by number of judgments, some of which have been affirmed by the Honble High Court of Delhi as well, there would be no need to delve on the issue, but for to take into consideration two memoranda dated 12.01.1988 and 14.09.1992, which alone are relevant for determining the controversy in issue. All that we may, however, still mention is that, whereas in the memorandum of 1988 there were specific grounds for putting the case of an employee in sealed cover in the matter of promotion, if sanction to prosecute an employee had since been granted, but the same after the judgment of the Honble Supreme Court in Union of India v K. V. Jankiraman [AIR 1991 SC 1210] has been deleted in the memorandum of 1992. This Tribunal in OA No.1919/2008 in the matter of B. S. Bola, IPS v Union of India, decided on 11.08.2009, while considering an identical issue, referred to its earlier judgment in OA No.1185/2007 in the matter of Om Prakash v Union of India, decided on 03.06.2008, which has since already been affirmed by the Honble High Court of Delhi in a writ petition bearing WP(C) No.7810/2008 filed thereagainst, vide order dated 27.11.2008. In our judgment in B. S. Bolas case, we observed that We may only mention that whereas, the case of the applicant for adopting sealed cover procedure may be justified on the dint of DOP&T OM dated 12.1.1988, the same would not be so covered by the later OM dated 14.9.1992, vide which not only the OM dated 12.1.1988, but all other OMs covering the issue were superseded. This precise issue in reference to the difference in the two OMs referred to above has been threadbare dealt with by us in Om Prakash (supra). We then extracted the relevant observations made in that behalf as follows: 8. It could not be disputed during the course of arguments that the promotion/confirmation of employees against whom disciplinary/court proceedings are pending or whose conduct is under investigation, is now governed by instructions contained in OM dated 14.9.1992. That being so, in our considered view, sealed cover procedure can be adopted in case where a government servant may be under suspension, or in respect of whom a charge -sheet has been issued and the disciplinary proceedings are pending, or in respect of whom prosecution for a criminal charge is pending. Whereas clause (i) of para 2 of instructions of 1988 and 1992 is the same, there is a marked difference between clause (ii) of para 2 of instructions of 1988 and that of 1992. Whereas, as per clause (ii) of para 2 of the 1988 instructions, sealed cover procedure could be adopted in respect of government servant against whom disciplinary proceedings were pending or a decision had been taken to initiate disciplinary proceedings, such procedure can be adopted as per clause (ii) of para 2 of the 1992 instructions only in respect of government servant against whom charge -sheet has been issued and the disciplinary proceedings are pending. Reading of clause (ii) of para 2 of the 1992 instructions would make it absolutely clear that disciplinary proceedings would be considered to be pending only if the charge -sheet has been issued, as the words whom a charge -sheet has been issued precede the words and the disciplinary proceedings are pending. This meaning of clause (ii) of para 2 can be gathered from the fact that the word and has been used between the words Government servants in respect of whom a charge -sheet has been issued and the disciplinary proceedings are pending. If perhaps, instead of the word and, or was mentioned, it could mean that in either case, i.e., when disciplinary proceedings are pending, or a charge sheet was framed, the sealed cover procedure could be adopted. We need not further delve into clause (ii) of para 2 of instructions of 1988 or 1992 as it is not the case of the respondents that sealed cover procedure has been adopted in the case of the applicant because of circumstances obtainable in clause (ii) of para 2 of the instructions of 1988 or 1992. Once again, there is significant change in clause (iii) of para 2 of the 1988 instructions and the one contained in 1992 instructions. Whereas, as per clause (iii) of para 2 of the 1988 instructions sealed cover procedure could be adopted with regard to a government servant in respect of whom prosecution for a criminal charge was pending or sanction for prosecution had been issued or a decision had been taken to accord sanction for prosecution, as per clause (iii) of para 2 in the 1992 instructions such procedure can be adopted only if the prosecution for a criminal charge is pending against a government servant. Pendency of sanction for prosecution or even a decision that might have been taken to accord sanction for prosecution, have been consciously deleted from clause (ii) of para 2 of the later instructions. Insofar as clause (iv) of para 2 in the 1988 instructions is concerned, the same has been deleted from the 1992 instructions. Para 7 of the instructions, be it the instructions of 1988 or of 1992, would be applicable only with regard to circumstances enumerated in para 2, and no others. We are of the firm view that sealed cover procedure can be adopted only in circumstances enumerated in para 2 of instructions of 1992, and even if the circumstances as mentioned therein may surface after the DPC might have cleared a government servant for promotion, he may yet not be promoted, as in that event it has to be considered to be a case of deemed sealed cover procedure. In the present case, it is apparent that none of the circumstances enumerated in para 2 of the instructions of 1992 were in existence. The same did not come into existence by sanctioning prosecution of the applicant. The contention of Shri Bhardwaj, learned counsel representing the respondents, to incorporate the circumstance of sanction for prosecution enumerated in the instructions of 1988 justifying non -promotion of the applicant, in our view, has to be repelled. A writ against the judgment in Om Prakash (supra), as mentioned above, was carried before the High Court, which was dismissed on 27.11.2008. We may reproduce relevant part of the judgment of the High Court which covers the issue, thus: 11 Even a casual perusal of the above two paragraphs of the Office Memorandum dated 14th September, 1992 shows that there is no provision made therein for adopting the sealed cover procedure or a deemed sealed cover procedure in cases in which only sanction is accorded for prosecution. This is in stark contrast to such a specific mention and provision made in the Office Memorandum dated 12th January, 1988. 12. It appears to us that the Central Government, while framing the Office Memorandum dated 14th September, 1992 specifically and consciously deleted the requirement of a sealed cover procedure or a deemed cover procedure in respect of Government servants in respect of whom sanction for prosecution is granted. It is not clear why the Central Government has taken such a view, but it is not for us to comment on this or on the correctness of the view consciously taken by the Central Government. 13. Under these circumstances, it appears to us quite clear that since there is no rule or Office Memorandum which entitles the petitioner to withhold the physical promotion of the respondent only because sanction for his prosecution has been granted, the Tribunal took the correct decision in allowing the OA filed by the respondent. 14. We are in agreement with the view expressed by the Tribunal that in the absence of any rule permitting the withholding of the respondents promotion a direction should be issued to the petitioner to give effect to the recommendations of the DPC and to promote the respondent from the date his juniors were promoted with all consequential benefits as may be admissible under the Rules. The matter being covered by the authoritative pronouncements as referred to above, we need not refer to other judgments, as that would unnecessarily burden the judgment, but we may only mention that this view has been consistently followed by this Tribunal.